Our solicitor prepared prescribed Section 21 Notice should be used to end a residential Assured Shorthold Tenancy either before or after the initial fixed term has ended. This is a mandatory document for any landlord wishing to regain possession.

If both parties agree

It is possible to end the agreement at any time if both parties agree. This is called "surrender". There are two ways that surrender of a tenancy can occur: by "operation of the law" or by a "declaration of surrender".

For an agreement to be legally ended both sides must agree, and it's always best to put what's been agreed in writing so everyone knows where they stand. If a joint tenancy is in place, all the joint tenants and the landlord must agree to the surrender.

When a tenant has legally surrendered the tenancy, then the landlord has the right of possession of the property under Section 5 of the Housing Act 1988.

The landlord needs to be sure that the agreement has been ended properly, before re-letting the property. If the landlord takes possession of the property when the tenant has not ended the agreement properly and both parties have not agreed, then the landlord could be accused of unlawful eviction.

Surrender by Operation of the Law

This involves the tenant giving up their occupation of the property to the landlord and the landlord accepting this. This may involve the tenant handing over the property’s keys to the landlord and the landlord accepting that the agreement is over and that the landlord now has possession. The tenant may remove furniture and their belongings from the property to show the landlord that they are in agreement with ending the tenancy.

Declaration of Surrender

This type of surrender involves the tenant signing a "Declaration of Surrender". This written document then acts as proof of what was agreed but ultimately the facts speak louder than words i.e has the tenant actually surrendered the property or not?

Fixed and periodic agreements

A fixed term agreement is for a fixed period agreed in the rental agreement (usually six months or one year). A tenancy could be fixed term even if rent is paid each week/month. If the fixed term ends and no new tenancy agreement is drawn up then the tenancy agreement becomes periodic.

A periodic agreement rolls from week to week, or month to month. These include tenancies that were originally for a fixed term that have ended and no new fixed term agreement has been drawn up.

Ending a fixed term tenancy agreement

Many fixed term agreements contain a 'break clause', which allows a tenant to end the agreement before the fixed term runs out. It is important for landlords to be aware of the implications of including such a clause. If the agreement doesn't include such a clause then a tenant cannot end the tenancy early without the landlord's agreement. If the tenant leaves anyway they can still be liable for the rent to the end of the period. If it does include a break clause, the tenant will be able to leave early provided they follow the procedure laid out in the clause, for example the amount of notice they must give.

If the agreement is for a fixed term, a tenant has the right to leave on the last day of the fixed term without giving any notice. If they stay even one day over the fixed term, they will automatically become a periodic tenant and will have to give proper notice unless the landlord agrees to them leaving.

A landlord can end a tenancy at the end of the fixed term (usually 6 months) provided that the tenant has been given two months written notice in the form of a section 21 notice to quit. Download Here.

Ending a periodic tenancy agreement

If the agreement is periodic (rolling from week to week or month to month), a tenant will normally have to give at least four weeks' notice to end it, or a calendar month if it is a monthly tenancy. The notice must be in writing and must end on the first or last day of the tenancy, unless the tenancy agreement allows it to be ended on a different day. If rent is paid less frequently a tenant has to give at least one rental period of notice. So if rent is paid every two months, two months notice would be required.

A tenant may choose to end a periodic tenancy by issuing a valid notice to quit to the landlord. Once the notice expires then the tenant’s agreement will have ended.

Ending a tenancy agreement early

A landlord can only end a tenancy before the fixed term is up if the tenant has breached the tenancy agreement. If this has happened then the landlord must make an application to a court for possession.

Before applying for possession a landlord will need to serve a section 8 notice to quit on the tenant as this will form part of the evidence that the court will insist on seeing before granting a possession order. A section 8 notice states that the landlord intends to seek possession of the property and also states the ground or grounds on which possession is sought. Without a valid notice a landlord will not get possession.

The amount of notice required to be given to the tenant will depend on the grounds under which possession is sought. For further information on this topic see the page on issuing a section 8 notice.

What if the tenants just leave?

Walking away or posting the keys through the letterbox is called "abandonment" and will not end a tenancy agreement. The agreement will continue even though the tenants have left and the landlord has the right to continue to charge rent.

A landlord can apply for a court order to make tenants pay what is owed. It should be noted that if the property has since been let out rent can only be claimed for the period of time before a new tenant has moved in.

The period of time that rent can be charged after a tenant leaves depends on the type of agreement.

Fixed tenancy

In a fixed term agreement rent can continue to be charged up until when the term ends.

Periodic tenancy

If the agreement is periodic, rent can be charged up until the time when the agreement would have ended had the tenant given the agreed period of notice.

What is Abandonment?

If a tenancy agreement has not been legally ended or surrendered, but the tenant appears to have left the property during the tenancy, then this is known as abandonment.

Tenants sometimes choose to leave a property for long periods of time, but if they are planning to be away from the property for more than two weeks they are required to inform the landlord. This is often stated in the tenancy agreement, so the tenant would be breaking the terms of the tenancy if they failed to inform the landlord they were going to be away from the property.

A landlord must be sure that the tenant has surrendered the tenancy by abandonment, before re-letting the property or changing the locks. The best way to be sure of this is by contacting the tenant and ensuring they confirm they are abandoning the tenancy by a written notice to quit. Retuning the keys is a clear indication from the tenant that they are agreeing to surrender the tenancy. If a tenant has not ended the agreement, the landlord is responsible to ensure their belongings are looked after if they have been left in the property.

If the landlord is unsure as to whether the tenant is living in the property or not, it is best to end the tenancy by applying for a possession order, rather than run the risk of having unlawful eviction proceedings put forward. A tenant may return and press charges of illegal eviction under the Protection from Eviction Act 1977. If the landlord has re-let or repossessed the property they also run the risk of being charged with breaching the terms of the tenancy agreement. The safest option, for landlords when abandonment seems to have occurred is to get a possession order from the courts, especially if a tenant has left their belongings or furniture in the property.

A landlord must make the necessary checks to confirm that the tenant has abandoned the tenancy. It could be that a tenant is on a long holiday, is in hospital or undergoing a short prison sentence.

In order to gain evidence as to whether or not abandonment has occurred the landlord can make enquires by:

Speaking to the neighbours

Checking to see if the keys have been returned

Finding out if the rent is still being paid

Contacting a relative for information on the tenant’s whereabouts

Finding out if belongings or furniture have been removed from the property.

If after trying to gather information on the tenant's whereabouts and whether or not abandonment has occurred, it appears the property has been abandoned then the landlord is only able to enter the property under certain circumstances. If the landlord feels that the property is in an insecure condition, or that electrical or gas appliances could cause damage or danger to the property then they may have a case for entering the property. If this is the case, it is advisable to have an independent witness who is happy to confirm the condition of the property and the situation in writing. The landlord is also required to place a notice on the door of the property if the locks have been changed (for security reasons) advising the tenant where they can contact the landlord to gain a new key to the property.

Illegally evicting a tenant is a criminal offence, so landlords need to be careful before repossessing or re-letting a property and take the necessary precautions.

Notice of Abandonment

If a landlord is almost sure abandonment has taken place, then they are advised to place a notice on the door of the property informing the tenant of their intention to regain possession of the property.

The notice should include the following information:

A statement from the landlord of the belief that the property has been abandoned and the relevant dates

The landlord’s contact details and full name

The tenant’s name and the address of the property

A statement asking any persons who know of the tenant or the tenant’s whereabouts to inform the landlord

A date whereby if the tenant has not made contact with the landlord then it will be presumed that the tenancy has been surrendered

A statement which recommends that the tenant seeks legal advice in relation to their tenancy.

If the landlord puts up the notice with a witness present (which is recommended) then the witness’s name should also be recorded on the notice.

A landlord may also decide to take photographs of the notice as proof that the tenant has been informed of the intention to regain possession of the property.

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Our solicitor prepared prescribed Section 21 Notice should be used to end a residential Assured Shorthold Tenancy either before or after the initial fixed term has ended. This is a mandatory document for any landlord wishing to regain possession.